The holidays are a series of negotiations. Where do we spend the holiday? Who will join us? Whose family recipe will be used for dinner? Most importantly, who will be present? Will my feelings be hurt? Will I hurt feelings? And, why is so and so always so loud or, alternatively, so quiet?

But, listening is a sometimes rusty skill in this day and age of electronic communications. We respond quickly to emails and messages. We listen to respond rather than to learn. If you want to improve your holiday, think about listening in a new way. Listen to learn. It’s actually a lot less work than responding, and you will learn a great deal. You will learn what mediators and hostage negotiators need to know — what are your true interests, fears, needs I always feel a little like I am not working when I simply sit and listen during mediation, but then I realize it’s productive. The same goes for the pre-holiday negotiations and the holiday table discussions. Before the holiday, listen to what others want and need (or even fear) in their holiday. Maybe they prefer a small gathering whereas you were hoping for the big Norman Rockwell holiday table. Maybe they have different and or new people they are seeking to please.

And, once you are at the table, really listen. You have to actually listen and want to listen genuinely, and let people know they are heard. We call this active or reflective listening. “So, your vacation sounds like it was filled with great dinners, nature, and relaxation.” Or you may want to validate a feeling or an emotion — “Sounds like your work is pretty frustrating these days with the difficult office manager.”

Seems innocent enough. Father tells college age daughter he settled his age discrimination case against his former employer. Daughter posts on Facebook (to her 1,200 friends), “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Patrick Snay was the headmaster of Gulliver Preparatory School where his daughter attended high school. He was terminated and filed an action claiming age discrimination. In 2011, the parties settled the case with Gulliver agreeing to pay Snay $10,000 in back wages, $80,000 in general damages, and $60,000 in attorneys fees. The agreement’s confidentiality provision prohibited Snay and his wife from disclosing the “terms and existence” of the agreement, according to the Miami Herald.

Immediately after settlement, Snay told his daughter, Dana, that the case was settled, and he was happy about the result. Dana posted to her 1,200 friends Facebook (many of whom were former Gulliver students), and Gulliver notified Snay they would not pay the $80,000. Snay sued to enforce the agreement. During depositions Snay claimed his daughter had suffered psychological damage during her enrollment at Gulliver and was aware her parents were in mediation. He said he knew the restrictions but had to tell her something. The trial judge agreed and enforced the agreement. However, the appellate court reversed ruling Snay and his daughter breached the confidentiality provision of the agreement when she bragged about it on social media.

On a nearly daily basis, we review the confidentiality provisions with the clients. Now I have something else to add — this cautionary tale.

They are calling it a new psychological phenomenon, “the Ikea Effect.” Three professors who have studied this phenomenon have found that people attach more value to things they build themselves, even if those things are imperfect, like a somewhat wobbly Ikea dresser. In a series of experiments, Professors Mochon, Norton and Ariely and found that people who create their own items such as an Ikea table, Legos or Build-A-Bear, have increased feelings of pride and confidence. The more effort people put into something, the more they come to value it. They also found, however, that people who first felt incompetent and then succeeded at building their own item were the most vulnerable to the Ikea Effect. When National Public Radio ran a story on this, I was stunned by the similarity to the theory of why mediation is so successful.

Likewise in mediation, we know that if we empower people to arrive at their own solutions (rather than ramming it down their throats or deciding for them), the solutions are more durable, more likely to be honored by all parties, and the conflict diminishes over time. The skill of the mediator is to allow parties to arrive at their own solutions, help them brainstorm without deciding for them, and seeing the pride that follows from the successful settlement of sometimes a long and drawn out lawsuit. According to the experts, people enjoy greater satisfaction when they have been incompetent. Where a lawsuit has erupted, the parties may well feel incompetent, and thus we often see a huge wave of relief come over parties’ faces when the agreement is finally signed and the case is resolved.

Climbers and Sherpas had an intense and violent conflict recently on Mount Everest. Like most conflicts, the presentation of the conflict, did not reflect each side’s feelings and needs. It’s an amazing story of recognizing cultural differences and resolving conflict peacefully, taking into account the interests of both parties.

According to one source, three climbers above the Sherpas dislodged ice between Camp 2 and Camp 3 causing it to fall towards the Sherpas as the Sherpas were installing fixed ropes on the face. One of the climbers wrote a blog detailing the fight and how the Sherpas attacked the climbers causing injuries. According to the climber’s blog, the Sherpas told the climbers if they were not gone in an hour, they would all be killed. However, the Sherpas claimed the climbers had ignored their requests not to pass as they installed the ropes, and how the climbers yelled inflammatory words in the Nepali language. Naturally, it appeared both sides contributed. The conflict culminated at Camp 2 when a mob of Sherpas attacked the climbers with punches, kicks and rocks according to CNN and adventure journal.

But, what was really going on? If you are a climber, you have invested an insane amount of money, energy, personal pride, and/or passion into your climbing. You might be escaping your city life, pushing the envelope or just having fun. You might be risking your life for a recreational pursuit. Or, you might even consider it a spiritual journey. If you are a Sherpa, you earn most of your family’s annual income in two months on the mountain. This is your dangerous work where safety is essential. You have also been raised with a deeply ingrained spiritual respect for the mountain. And, your Buddhist beliefs might make you question those who make the dangerous climb for recreation or to add a bullet to the resume. For example, According to National Geographic, the Incarnate Lama of the Tengboche Monastary recently said, “You can’t eat climbing awards or numbers of summits.”

The clash between the Sherpas and the climbers had been brewing for years. The Sherpas have likely questioned the climbers’ motivations and attitudes for years, but their families are supported by the industry, so they stay quiet. The climbers likely lack proper respect for the hard work of the Sherpas and probably fail to understand their concerns about the dangerous nature of the Sherpas’ jobs. But, some believe the teachings of Buddhism led the parties to forgive each other and sign the Base Camp Peace Agreement stating:

““All those present agreed and committed that such activities must never be repeated by anyone in mountaineering and in the tourism sector. If any party is dissatisfied with the actions of another party, they commit not to go into conflict or use violence against the other party. Instead they commit to report the actions to the government representatives or relevant government recognized association present at the base camps, to come to an amicable solution between the parties.” It is a worthy and noble idea, and maybe it will lead to better understanding. But 50 years to the day since the first American ascent, the Everest climbing scene has become a complex mix of big-money efforts fueled by intensely goal-oriented people, where cultural and language differences easily lead to misunderstanding, all set in an extremely dangerous natural environment at an altitude that diminishes decision making and weakens the body. In light of all that, summiting might be the easy part.”

Wow. They recognized their cultural differences and acknowledged they led to misunderstanding. They committed to peace. Impressive.

Will Martha Stewart be able to make lemonade from lemons in her recent legal battle? Will she cook up creative ways to recycle her lawsuit into an elegant business solution? Like explaining how to remove garlic peels with ease during a recent Wait Wait Don’t Tell Me program, can she come up with graceful solution to her lawsuit? What will she say about mediation after she emerges? Will her attorney hire a trained and experienced mediator who will allow her creative juices to flow?

Judge Jeffery K. Oing took 3 weeks of testimony in the case before a creative light went on in his head, and he ordered Martha Stewart to mediation in her controversy with Macy’s. Macy’s brought an action against J.C. Penney and Martha Stewart Living Omnimedia regarding J.C. Penney’s sale of Martha’s bedding, bath and kitchen items. Macy’s claims exclusive contract rights to sell Martha’s products, and that Martha’s sale of those products to J.C. Penney’s violates that contract. Not so fast, says Martha, claiming nothing prevents her from selling her products in her own store and the Penney products will be sold at “a store within a store.” Sounds like a creative legal argument. According to the New York Times, “the Martha” wanted to mediate earlier, but Macy’s previously refused. Now the court has ordered mediation, and the parties have until April 8, 2013 to resolve the case.

So what will mediation produce? Consider the personalities involved. I don’t know Martha’s attorney or the other parties involved, but Martha has been studied. Sociologist Magalene Harris Taylor, author of “Martha Stewart as a Sociological Phenomenon” finds Martha’s success is due to her ability to embody contradictions. She is committed to home and family, but her business sense and ambition are highly feminist. She originates from a white middle class background, but appreciates different ethnic and cultural lifestyles. She loves recycling ordinary household items into items that are both functional and attractive. In a time when housework has become steadily devalued, she has taken a symbol of women’s subjugation, housework, and made it profitable. In a newsletter citing Taylor’s article, Martha’s success is described as “a combination of contradictory ingredients: mix equal parts male assertiveness and female sensitivity, add a dash of white privilege, a cup of multicultural consciousness, and simmer in front of a live audience.” So, will she bring all these qualities to the mediation table?

The parties have until April 8 to resolve the case. Surely they will hire a trained, qualified and experienced female mediator who can relate to Martha, a mediator who works and maintains a mediation practice, a home and a family. And certainly Martha will use her assertiveness and sensitivity to brainstorm solutions with Macy’s. Will she forge a new and profitable business solution? Maybe she will orchestrate the merger of J.C. Penney’s (currently moving to jcp) and Macy’s – into “The Martha’s.” Stay tuned.

Mediation is a process of conflict resolution. Force is not a technique embraced by mediators. Listening, understanding perspectives, probing priorities, providing guidance, and discussing the likely outcome in court are some of the techniques mediators use to resolve disputes. I have had a mediation or two where I was concerned about clients packing weapons. After all, I live in the West where guns are not only available, but welcome. In some rural communities, guns are standard fare in the windows of the pick up trucks. One city in Utah is trying to mandate gun ownership.

In the past, I have asked clients if they are packing a weapon. If they are, I ask them to take it to their car. Emotions run too high in mediation to take a chance. But, the question is whether anyone really knows that a person is packing a weapon. Should we install metal detectors in our offices? Should we schedule potentially high conflict mediations at the courthouse, so everyone goes through security?

At the bankruptcy court’s urging, Hostess and the Baker’s Union agreed to mediation to avoid the liquidation of Hostess and the loss of an estimated 18,000 jobs. But is it really a mediation? The judge hearing the case, Judge Robert D. Drain, will be the mediator. The mediation is tomorrow. If they do not agree, court resumes Wednesday.

This is really not mediation, is it?

First of all, mediation is generally involves privileged settlement discussions that are inadmissible in court under the rules of evidence. The idea is that the parties can talk about the case and brainstorm solutions without fear that their negotiations will prejudice the court. As I stated in my article entitled, Mediation Confidentiality and Enforceable Settlements: Deal or No Deal,

Confidentiality is a critical element of successful mediation. In order for the mediator, the attorneys and the clients to understand the central issues, the motivations, the pressure points and the risks of litigation, the participants must be assured the discussions cannot and will not be disclosed to others so they can talk openly. Frequently, some of the motivating forces behind lawsuits are legally irrelevant and yet exceptionally important to understanding the conflict and facilitating resolution. Frequently, clients disclose private events, perceptions or issues in mediation they would not want disclosed to anyone. Explaining their concerns and fears is often critically important to them in order to resolve the conflict. If discussions with the mediator are not confidential and privileged, the mediation process, the mediator’s role and the potential for resolution are significantly diminished.

Second, mediation of complex cases requires a different type of preparation than trial preparation — for the attorneys and their clients. See, “How to Achieve the Best Results in Mediation” and other articles on the differences between trial preparation and mediation preparation. Less than a day of mediation preparation for lawyers and clients and the “mediator” is absurd.